[U] Commonwealth v. Berry

Appeal from the Judgment of Sentence, August 12, 2011, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0000846-2007.

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND WECHT, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

Erin Berry appeals from the judgment of sentence entered on August 12, 2011, in the Court of Common Pleas of Allegheny County. We affirm.

The trial court has summarized the facts of this case as follows:

On October 26, 2006, at approximately 11:34 p.m., Marquela Crosby was in an upstairs bedroom at her home located at Pennwood Avenue and South Avenue in the Borough of Wilkinsburg caring for her blind grandmother. On the first floor in the living room, Carlotta Carey, Marquela's mother, was watching television along with Marrow Carey, Marquela's uncle and Willie Williams, a family friend. Marrow Carey, in addition to watching television, was on the phone with his girlfriend, Toni Robinson, when there was a kick at the front door followed by a second kick which forced the door open and then three individuals ran into the residence all dressed in black with masks covering their faces, and all carrying a firearm. One of the individuals possessed a TEC-9 semi-automatic weapon with a banana clip, which he pointed at Marrow Carey. Marrow Carey put down the phone although he did not end the call that he had with his girlfriend. Toni Robinson heard the conversations that were taking place in the Carey home and concluded that a home invasion/robbery was taking place at which point she ended her phone call and made a 911 call to the Wilkinsburg Police advising them of the situation taking place at the Carey residence.

During the course of this robbery, two of the three individuals went upstairs looking for property to take and were coming down the stairs when the police arrived at the scene. The Wilkinsburg Police station is approximately two and one-half blocks from the Carey residence. Seeing the police lights and hearing the sirens, the individuals decided to flee the residence and two went out the back door and one went out the front door almost running into the police. A chase ensued and during the course of that chase, that individual threw an object into another yard. This individual was not only being chased from the rear by a police officer but also from the front. Realizing that he would not elude the police, he surrendered, was put to the ground, handcuffed and then searched. During the course of this search the police recovered a red cell phone, which was later identified as being Marquela Crosby's phone. The individual apprehended by the police was subsequently identified as Erin Berry. Officer Ronald Waz of the Wilkinsburg Police Department, in watching Berry[, ] saw him exit the Carey residence and attempt to outrun another Wilkinsburg police officer, also saw him toss an object and made a mental note as to where that object landed. During the subsequent search of that area, a TEC-9 semi-automatic with a banana clip was recovered together with an envelope that had the address of the Carey home on it. The other two individuals to these crimes were not apprehended.

Trial court opinion, 12/14/12 at 2-4.

Appellant was charged with one count of robbery (victim, Marquela Crosby); one count of burglary, one count of carrying a firearm without a license, persons not to possess firearms, possession of weapon, possession of an instrument of crime with criminal intent, and five counts of recklessly endangering another person ("REAP").

A jury trial commenced on September 29, 2009, before the Honorable David R. Cashman; appellant was represented by Donna McClelland, Esq. A mistrial was declared due to the jury having brought in only a partial verdict. The jury found appellant not guilty as to the charges of carrying a firearm without a license, possession of a weapon, and of REAP (victim, Willie Williams). Thereafter, Judge Cashman granted a motion for judgment of acquittal as to the possession of instruments of crime, and as to three REAP counts (victims, Carlotta Carey, Marrow Carey, and Toni Robinson). The jury was hung on the remaining charges.

On September 14, 2010, a second jury trial commenced before Judge Cashman; Joseph Horowitz, Esq., represented appellant on the remaining charges. The jury returned a verdict of guilty as to the charges of robbery, burglary, and REAP (victim, Marquela Crosby). The charge of person not to possess a firearm was again tried non-jury, and Judge Cashman found appellant guilty. On January 4, 2011, appellant was sentenced to a period of incarceration of 10 to 20 years for robbery and a consecutive period of incarceration of 5 to 10 years for person not to possess a firearm; no further penalty was imposed at the remaining counts.

Thereafter, Christy Foreman, Esq., entered her appearance on appellant's behalf. On January 14, 2011, a timely post-sentence motion was filed on appellant's behalf. (Docket #19.) The motion challenged the sentence as excessive and challenged the effective assistance of trial counsel. The motion also challenged the court's verdict of person not to possess a firearm, argued that appellant had not voluntarily waived his right to a jury trial on this count, averred the verdicts were not supported by sufficient evidence, and raised a weight of the evidence claim. Following a hearing on June 10, 2011, Judge Cashman granted the motion in part and dismissed appellant's conviction for possession of a firearm prohibited; the remaining sentence was vacated. The motion was denied in all other respects. On August 12, 2011, appellant was sentenced to 10 to 20 years for robbery and a consecutive period of incarceration of 3 to 6 years for burglary.

A timely notice of appeal was filed on September 9, 2011. Appellant complied with the trial court's order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.

The following issues have been presented for our review:

I. WHETHER APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO CALL ALIBI OR EXCULPATORY WITNESSES[?]

II. WHETHER APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO PROPERLY IMPEACH COMMONWEALTH WITNESSES WITH PRIOR INCONSISTENT STATEMENTS AND FAILED TO ZEALOUSLY REPRESENT APPELLANT[?]

III. WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE[?]

IV. WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN APPELLANT'S CONVICTIONS FOR ROBBERY, BURGLARY, AND RECKLESSLY ENDANGERING ANOTHER PERSON[?]

1115, 124 S.Ct. 1053, 157 L.Ed.2d 906 (2004), our Supreme Court recognized an exception to Grant and found that where ineffectiveness claims had been raised in the trial court, a hearing devoted to the question of ineffectiveness was held at which trial counsel testified, and the trial court ruled on the claims, a review of an ineffectiveness claim was permissible on direct appeal. See Bomar, 826 A.2d at 853-854; See also Commonwealth v. Fowler, 893 A.2d 758, 763-764 (Pa.Super.2006); Commonwealth v. Wright, 599 Pa. 270, 319-320, 961 A.2d 119, 148 (2008).

However, most recently, in [Barnett, supra at 376-378] this Court concluded our Supreme Court has limited the applicability of Bomar and that Barnett's assertions of counsel's effectiveness are appropriately raised only on collateral review. We ultimately determined that "[w]ith the proviso that a defendant may waive further PCRA review in the trial court, absent further instruction from our Supreme Court, this Court, pursuant to Wright and Liston, will no longer consider ineffective assistance of counsel claims on direct appeal." Id. at 377. As such, we dismiss Appellant's first issue without prejudice to her ability to raise it in a subsequent PCRA petition, if she so chooses.

Herein, there is no indication in the record that appellant made an express waiver of PCRA review. Accordingly, we are unable to reach the merits of these two issues on direct appeal. Thus, we dismiss these claims without prejudice to appellant's right to present them in a subsequent PCRA petition.

We now turn to appellant's claim that the evidence was insufficient to support his convictions for robbery, burglary, and REAP. Following our review of appellant's brief, we find this issue is waived as appellant has not presented an adequate argument concerning this claim. Issues not properly developed or argued in the argument section of an appellate brief are waived. Commonwealth v. Cassidy, 620 A.2d 9, 11-12 (Pa.Super. 1993). Appellant merely presents a litany of disjointed reasons why he believes the evidence falls short with little or no attempt to explain the significance of his argument with respect to any of the specific offenses for which he was convicted. See Commonwealth v. Clayton, Pa. ___, ___, 816 A.2d 217, 221 (2002) (undeveloped claims are waived and unreviewable on appeal); Commonwealth v. Renchenski, 988 A.2d 699, 703 (Pa.Super. 2010) (claims which appellant listed in brief absent relevant argument, citation, or supporting authority are waived); Commonwealth v. Hartzell, 988 A.2d 141, 145 (Pa.Super 2009) (same). Having thus presented his sufficiency claim in a vacuum, he has waived this claim.

The final issue presented for our review concerns the weight of the evidence. Our standard of review follows.

Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.

This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is unfettered. In describing the limits of a trial court's discretion, we have explained[, ] [t]he term 'discretion' imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.

Appellant argues that the lack of evidence directly connecting him to the crimes, coupled with inconsistent statements made by Commonwealth witnesses, establishes that the verdict was against the weight of the evidence.

Instantly, the jury was free to believe the Commonwealth's witnesses over those presented by appellant. As the trial court explained in its Rule 1925(a) opinion, while none of the victims saw the perpetrators' faces, the Commonwealth established appellant's identity as one of the robbers through reasonable inferences drawn from the facts and physical evidence seized from his person and the surrounding area where he was observed throwing an object.

Again, the police responded almost immediately to the report of the home invasion at a residence two and a half blocks from the police station. Appellant was observed leaving through the front door of the residence and then ran from the police. Officer Waz saw appellant throw an object into an adjoining yard and was able to identify the area. Later, the police recovered a TEC-9 semi-automatic weapon which one of the victims indicated was used during the robbery. While appellant now alludes that it was improper to refer to the firearm found near the location where appellant was apprehended because he was exonerated of the firearms charge at the first trial, we note that no objection was made to the reference of the weapon found.

The police also recovered an envelope with the Carey address on it. During the search of appellant, the officers discovered a red cell phone that Marquela Crosby identified as her cell phone. At the time of arrest, appellant was wearing black pants, black shoes, a black hoodie, and a black leather coat with a black bandana hanging from his neck which fit the description of the robbers.

We find no abuse of discretion in the trial court's denial of appellant's weight claim. The jury resolved credibility determinations in favor of the Commonwealth and convicted appellant.

Judgment of sentence affirmed.

Judgment Entered.

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